Agency Information Collection Activities; Proposed Collection; Comment Request; Third Party Testing of Children's Products

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice.

SUMMARY:

In accordance with the requirements of the Paperwork Reduction Act (“PRA”) of 1995 (44 U.S.C. chapter 35), the Consumer Product Safety Commission (“Commission” or “CPSC”) announces that the Commission has submitted to the Office of Management and Budget (“OMB”) a request for extension of approval of a collection of information for Third Party Testing of Children's Products, approved previously under OMB Control No. 3041-0159. In the Federal Register of November 16, 2015 (80 FR 70762), the CPSC published a notice to announce the agency's intention to seek extension of approval of the collection of information. The Commission received one comment, which is addressed in this notice. By publication of this notice, the Commission announces that CPSC has submitted to the OMB a request for extension of approval of that collection of information, without change.

DATES:

Submit written or electronic comments on the collection of information by February 29, 2016.

ADDRESSES:

Submit comments about this request by email: OIRA_submission@omb.eop.gov or fax: 202-395-6881. Comments by mail should be sent to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the CPSC, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503. In addition, written comments that are sent to OMB also should be submitted electronically at: http://www.regulations.gov,, under Docket No. CPSC-2010-0038.

FOR FURTHER INFORMATION CONTACT:

Robert H. Squibb, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7815, or by email to: rsquibb@cpsc.gov.

SUPPLEMENTARY INFORMATION:

Comment on the Proposed Extension: CPSC received one comment from the government of India that raised several issues on the proposed extension of approval of the collection of information related to moving the marking and labeling burden requirements for section 104 rules into the collection of information for Third Party Testing of Children's Products. A summary of the issues raised and our responses appear below. For the reasons discussed below, CPSC has not made any amendments to the proposed renewal as a result of the comment.

Issue 1: The commenter stated that the “proposed rule” would require “manufacturers of children's products . . . to follow all the paperwork requirements associated with the section 104 rules.” The commenter objected to the proposed paperwork requirements, stating that the requirements would “significantly increase the burden on the manufacturers and importers of children's products.” The commenter described the types of increased burden anticipated, and asked the CPSC “whether there was any injury or risk attached or reported from the listed products which lead to the proposed regulation.”

Response 1: The commenter appears to misunderstand the intent of CPSC's Federal Register notice. CPSC did not issue a proposed rule that would change the paperwork requirements for children's products generally, or for rules on durable infant and toddler products issued pursuant to section 104 of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) (“section 104 rules”). Rather, CPSC's notice was intended to make stakeholders aware that CPSC is seeking approval from OMB of a renewal of an existing collection of information, which is a process required by the PRA. For information collection renewals, the PRA requires agencies to estimate the burden to stakeholders and the burden to the U.S. government to meet existing paperwork requirements. Addressing the renewal of an existing collection of information, CPSC's notice does not require any manufacturer or importer to increase, alter, amend, or decrease a paperwork burden associated with any rule issued by the CPSC, including section 104 rules.

CPSC's Federal Register notice fulfilled CPSC's obligation under the PRA to notify the public about the estimated burden calculation for the information collection for Third Party Testing of Children's Products and to seek approval of the renewal from OMB. To increase CPSC's administrative efficiency, CPSC proposed to consolidate the existing paperwork burden estimate for 14 rules that were created pursuant to section 104 into one OMB control number for Third Party Testing of Children's Products. The marking and labeling requirements for each of the 14 section 104 rules, set forth in Table 1, were established in separate prior rulemaking proceedings, which were all subject to notice and comment rulemaking. Moving the estimated burden for meeting marking and labeling requirements for these 14 section 104 rules does not change the existing paperwork burden for manufacturers and importers. If OMB approves the renewal of the collection of information for Third Party Testing of Children's Products, including existing paperwork requirements for marking and labeling of products subject to a section 104 rule, CPSC will account for the burden of testing and labeling of children's products under one OMB control number, 3041-0159, instead of using the 15 separate OMB control numbers in use today. To avoid confusion, and as shown in Table 1, CPSC will discontinue use of the 14 OMB control numbers currently in use for section 104 rules.

Issue 2: The commenter highlighted Article 5.1.2 of the World Trade Organization Agreement on Technical Barriers to Trade regarding unnecessary obstacles to international trade. Article 5.1.2 states:

conformity assessment procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. This means, inter alia, that conformity assessment procedures shall not be more strict or be applied more strictly than is necessary to give the importing Member adequate confidence that products conform with the applicable technical regulations or standards, taking account of the risks non-conformity would create.

Response 2: After reviewing Article 5.1.2, CPSC does not believe that the Article is applicable to the CPSC's proposed renewal of the collection of information for Third Party Testing of Children's Products or the proposed reallocation of the paperwork burden for section 104 rules. CPSC's notice does not alter or amend any existing technical regulation or paperwork requirement for children's products. Rather, for administrative purposes, CPSC is consolidating existing collections of information.

Issue 3: The commenter stated that the “quality, utility and clarity” of the products could be derived from general marking procedures provided for “in the infant products,” and the commenter asked about the necessity of adding marking and labeling requirements for section 104 rules, and also inquired about how the proposed requirement would be implemented.

Response 3: CPSC will not implement changes to marking and labeling requirements faced by industry because CPSC is not changing or adding any marking or labeling requirements for children's products or for section 104 rules. The marking and labeling requirements for each of the 14 section 104 rules were established in separate prior rulemaking proceedings, which were all subject to notice and comment rulemaking.

Issue 4: The commenter stated that implementation of the proposed requirement “may lead to unnecessary delay and escalate the cost” for export of children's products to the United States. The commenter stated that because the “proposed regulation” could create “a huge cost for Indian exports of children's products, India may like to seek bilateral consultation with USA to sort out the issue.”

Response 4: Discontinuing use of 14 existing OMB control numbers for section 104 rules and moving the burden allocation into one OMB control number for Third Party Testing of Children's Products will not create any new requirements for manufacturers or importers, and therefore, will not cause delay or increased costs. Going forward, CPSC's use of a single OMB control number should reduce burden and costs for CPSC to meet PRA renewal requirements, which must be updated every 3 years.

Description of the Collection: CPSC has submitted the following currently approved collection of information to OMB for extension:

Title: Third Party Testing of Children's Products

OMB Number: 3041-0159

Type of Review: Renewal of collection for third party testing of children's products and inclusion of the previously approved burden for marking and labeling of durable infant and toddler products into this collection of information.

General Description of Collection

Testing and Certification: On November 8, 2011, the Commission issued two rules for implementing third party testing and certification of children's products, as required by section 14 of the Consumer Product Safety Act (“CPSA”):

• Testing and Labeling Pertaining to Product Certification (76 FR 69482, codified at 16 CFR part 1107; “the testing rule”); and
• Conditions and Requirements for Relying on Component Part Testing or Certification, or Another Party's Finished Product Testing or Certification to Meet Testing and Certification Requirements (76 FR 69547, codified at 16 CFR part 1109; “the component part rule”).

The testing rule establishes requirements for manufacturers to conduct initial third party testing and certification of children's products, testing when there has been a material change in the product, continuing testing (periodic testing), and guarding against undue influence. A final rule on Representative Samples for Periodic Testing of Children's Products (77 FR 72205, Dec. 5, 2012) amended the testing rule to require that representative samples be selected for periodic testing of children's products.

The component part rule is a companion to the testing rule that is intended to reduce third party testing burdens by providing all parties involved in the required testing and certifying of children's products the flexibility to conduct or rely upon testing where it is the easiest and least expensive. Certification of a children's product can be based upon one or more of the following: (a) Component part testing; (b) component part certification; (c) another party's finished product testing; or (d) another party's finished product certification.

Records required by the testing rule and the rule on selecting representative samples appear in 16 CFR 1107.26. Required records include a certificate, and records documenting third party testing and related sampling plans. These requirements largely overlap the recordkeeping requirements in the component part rule, codified at 16 CFR 1109.5(g). Duplicate recordkeeping is not required; records need to be created and maintained only once to meet the applicable recordkeeping requirements. The component part rule also requires records that enable tracing a product or component back to the entity that had a product tested for compliance, and also requires attestations of due care to ensure test result integrity.

Section 104 Rules: The Commission has issued 14 section 104 rules. Section 104 rules issued to date appear in Table 1. Each section 104 rule contains requirements for marking, labeling, and instructional literature:

• Each product and the shipping container must have a permanent label or marking that identifies the name and address (city, state, and zip code) of the manufacturer, distributor, or seller.
• A permanent code mark or other product identification shall be provided on the infant carrier and its package or shipping container, if multiple packaging is used. The code will identify the date (month and year) of manufacture and permit future identification of any given model.

Each standard also requires products to include easy-to-read and understand instructions regarding assembly, maintenance, cleaning, use, and adjustments, where applicable.

OMB has assigned control numbers for the estimated burden to comply with marking and labeling requirements in each section 104 rule. With this renewal, CPSC is moving the marking and labeling burden requirements for section 104 rules into the collection of information for Third Party Testing of Children's Products. The paperwork burdens associated with the section 104 rules are appropriately included in the collection for Third Party Testing of Children's Products because all of the section 104 products are also required to be third party tested. Having all of the burden hours under one collection for children's products provides one OMB control number and eases the administrative burden of renewing multiple collections. CPSC will discontinue using the OMB control numbers currently assigned to individual section 104 rules. The discontinued OMB control numbers are listed in Table 1.

Frequency of Response: On occasion.

Affected Public: Manufacturers and importers of children's products subject to a children's product safety rule.

Estimated Number of Respondents:

Testing and Certification: CPSC reviewed every category in the NAICS and selected categories that included firms that could manufacture or sell any consumer product that could be covered by a consumer product safety rule. Using data from the U.S. Census Bureau, we determined that there were approximately 34,000 manufacturers, about 77,000 wholesalers, and about 133,000 retailers in these categories. However, these categories also include many non-children's products, which are not covered by any children's product safety rules. Therefore, these numbers would constitute an overestimate of the number of firms that are subject to the recordkeeping requirements.

Section 104 Rules: Table 1 summarizes the durable infant and toddler products subject to the marking and labeling requirements being moved into OMB control number 3041-0159.

Estimated Time per Response:

Testing and Certification: Based on comments received during rulemaking for the testing rule, we estimate recordkeeping for approximately 300,000 non-apparel children's products per year, with an average of 5 hours of recordkeeping burden associated with each product. We also estimate recordkeeping for approximately 1.3 million children's apparel and footwear products per year, with an average of 3 hours of recordkeeping burden associated with each product. Manufacturers that are required to conduct periodic testing have an additional recordkeeping burden estimated at 4 hours per representative sampling plan.

Section 104 Rules: Each section 104 rule contains a similar analysis for marking and labeling that estimates the time to make any necessary changes to marking and labeling requirements at one hour per model.

Total Estimated Annual Burden:

Testing and Certification: The total estimated annual burden for recordkeeping associated with the testing rule is 5.4 million hours (300,000 non-apparel children's products × 5 hours per non-apparel children's product + 1,300,000 children's apparel products × 3 hours per children's apparel product = 1.5 million hours + 3.9 million hours, or a total of 5.4 million hours).

Representative Sampling Plans for Periodic Testing: We estimate that if each product line averages 50 individual models or styles, then a total of 32,000 individual representative sampling plans (1.6 million children's products ÷ 50 models or styles) would need to be developed and documented. This would require 128,000 hours (32,000 plans × 4 hours per plan). If each product line averages 10 individual models or styles, then a total of 160,000 different representative sampling plans (1.6 million children's products ÷ 10 models or styles) would need to be documented. This would require 640,000 hours (160,000 plans × 4 hours per plan). Accordingly, the requirement to document the basis for selecting representative samples could increase the estimated annual burden by up to 640,000 hours.

Component Part Testing: The component part rule shifts some testing costs and some recordkeeping costs to component part and finished product suppliers because some testing will be performed by these parties rather than by the finished product certifiers (manufacturers and importers). Even if a finished product certifier can rely entirely on component part and finished product suppliers for all required testing, however, the finished product supplier will still have some recordkeeping burden to create and maintain a finished product certificate. Therefore, although the component part testing rule may reduce the total cost of the testing required by the testing and certification rule, the rule increases the estimated annual recordkeeping burden for those who choose to use component part testing.

Because we do not know how many companies participate in component part testing and supply test reports or certifications to other certifiers in the supply chain, we have no concrete data to estimate the recordkeeping and third party disclosure requirements in the component part rule. Likewise, no clear method exists for estimating the number of finished product certifiers who conduct their own component part testing. In the component part rulemaking, we suggested that the recordkeeping burden for the component part testing rule could amount to 10 percent of the burden estimated for the testing and labeling rule. 76 FR 69546, 69579 (Nov. 8, 2011). Currently, we have no basis to change this estimate.

In addition to recordkeeping, the component part rule requires third party disclosure of test reports and certificates, if any, to a certifier who intends to rely on such documents to issue its own certificate. Without data, allocation of burden estimation between the recordkeeping and third party disclosure requirements is difficult. However, based on our previous analysis, we continue to estimate that creating and maintaining records accounts for approximately 90 percent of the burden, while the third party disclosure burden is much less, perhaps approximately 10 percent. Therefore, if we continue to use the estimate that component part testing will amount to about 10 percent of the burden estimated for the testing rule, then the hour burden of the component part rule is estimated to be about 540,000 hours total annually (10% of 5.4 million hours); allocating 486,000 hours for recordkeeping and 54,000 hours for third party disclosure.

Section 104 Rules: The burden for marking and labeling for each section 104 rule is provided in Table 1. The estimated total number of respondent hours is 3,378.